In order to succeed in a claim for detriment or automatic unfair dismissal, does an employee need to explicitly refuse to comply with a requirement imposed in contravention of the Working Time Regulations?
Yes, held the EAT in Pazur v Lexington Catering Services Limited.
The Claimant worked as a Kitchen Porter, and was denied his right to a rest break (under Reg 10 WTR) when assigned to work for a client. He refused to return to work for the client, leading to him being threatened with dismissal and then subsequently dismissed. He claimed that the threat of dismissal was an unlawful detriment under s45A ERA and that he was automatically unfairly dismissed under s101A ERA.
In order for such claims to succeed, a tribunal must be satisfied that:
(a) That the employer imposed or proposed to impose a requirement on the Claimant;
(b) That requirement was in contravention of the WTR;
(c) The Claimant refused to comply with that requirement;
(d) That refusal was the reason for the detriment and/or dismissal.
The tribunal held that although requiring the Claimant to return to the client amounted to the imposition of, or proposed imposition of, a requirement in contravention to the WTR, they were not satisfied that the Claimant had refused to comply with that requirement, as although he had in fact not complied, he had not explicitly said he was refusing to do so. The Claimant appealed.
The EAT held that the tribunal had correctly considered whether the Claimant had explicitly refused (or proposed to refuse) to accept the requirement. They noted that if simple non-compliance (such as not turning up) was enough, Parliament would not have used the word “refuse” in the legislation. Consequently, there needed to be an explicit communication of the Claimant’s refusal.
Despite this, on the facts of the case, the EAT allowed the appeal as they concluded that the tribunal had made a finding elsewhere that the Claimant had in fact explicitly refused to return to the client because he had been refused his break.
Thanks to Paul Livingston of Outer Temple Chambers for preparing this case summary.